On
August 29, 2016, a Complaint was filed against Defendant
Tafari Spence (“Spence”). (Doc # 1) On September
13, 2016, Spence was charged by Indictment with one count of
Felon in Possession of Firearms in violation of 18 U.S.C.
§ 922(g)(1). (Doc # 9) On October 27, 2016, Spence filed
a Motion to Suppress Evidence. (Doc # 17) The Government
filed a Response on December 1, 2016. (Doc # 21) Spence filed
a Reply on December 15, 2016. (Doc # 22)

Through
the instant Motion, Spence seeks to suppress evidence seized
during the warrantless entry and search of his alleged home,
located at 8337 Almont Street in Detroit, Michigan. The
evidence seized from the house includes a Glock, Model 27
semi-automatic handgun loaded with eleven live rounds in an
extended magazine; an AR-15 magazine; a red dot sight; and a
sight magnifier. The Court held an evidentiary hearing on
January 25, 2017 and February 1, 2017. The Court heard and
has considered testimony from Detroit Police Department
(“DPD”) Officers Erik Peterson
(“Peterson”) and Johnathon Gardner
(“Gardner”), as well as from Cynthia Moody
(“Moody”), David Henderson
(“Henderson”), Walter Jackson
(“Jackson”), and Steven Mason. The Court has also
reviewed and considered the photo and video exhibits
introduced at the hearing.

II.
FINDINGS OF FACT

On the
night of July 31, 2016, DPD Officers Peterson, Jordan Napier
(“Napier”), Gardner, and Eric Maxwell
(“Maxwell”) were on patrol as members of a DPD
Tactical Response Unit. They were specifically deployed to
the area around 8337 Almont due to a high rate of gun
violence in the area in the prior weeks. As members of the
Tactical Response Unit, the officers were deployed to
different areas of the city each day. Peterson testified that
he has been a DPD officer for three years, and that he had
patrolled the area around 8337 Almont approximately five
times. Gardner testified that he has been a DPD officer for
two and a half years, and that he had never before patrolled
the area around 8337 Almont. The officers testified that they
had no familiarity with 8337 Almont.

While
on patrol, at approximately 10:00 p.m., the officers observed
a group of men drinking beer and playing music near three
vehicles in the grass lot just west of 8337 Almont. The
officers approached the men, and Peterson illuminated them
with a handheld flashlight. Peterson saw Spence wearing a
tight white tank top, red gym shorts, and a tether on his
right ankle. Peterson also saw an object shaped like a
handgun “swinging in” Spence's front right
pocket. Spence separated from the group and began walking
toward 8337 Almont. As Spence turned to walk toward the
house, Peterson again illuminated him with the flashlight and
observed the end of a handgun magazine sticking out of
Spence's right pocket. Peterson ordered Spence to stop.
Spence then removed a black handgun with an extended magazine
from his pocket, as he fled toward the west door of the
house. Peterson and Gardner gave pursuit, and as they neared
the door, they observed Spence inside the house closing and
locking the side door with the handgun still in his right
hand.

Peterson
ran to the rear of the house to check for a rear door. There
was no rear door. While at the rear, Peterson observed that
the house's electric meter had been removed, and the
wires were hanging low. See Gov't's Exh. 4.
According to Peterson and Gardner, the house appeared to be
vacant due to untrimmed landscaping, garbage littering the
lot, a white van in the back of the lot that appeared
abandoned with some flat tires and no license plate, and no
lights turned on inside the house.

Peterson
returned to the side door, which was now locked. He forced
entry into the house without knocking on the door. Gardner
followed closely behind. They began to clear the house in
search of Spence, while Napier and Maxwell secured the
outside of the house. Peterson and Gardner testified that
they made the following observations of the interior of the
house. They tried to turn on the lights, but there was no
electricity. In the kitchen, the officers observed a box of
power tools, empty cabinets, and a refrigerator taped closed
with what sounded like a rat inside. In the living room, the
officers observed some garbage bags that were full, but they
did not look inside the bags. They also saw a large sectional
couch with some items on it, clothing and property that
appeared to belong to a woman, and a hole in the ceiling. In
the bathroom, the officers observed a hole in the ceiling,
debris on the floor, and a toilet and bathtub that were both
full of urine, feces, and other debris. In the northeast
bedroom, the officers saw a bed and a dresser.

Peterson
and Gardner located Spence lying down on a bed with bed
sheets in the southeast bedroom. This bedroom had several
pieces of furniture including a dresser, a cabinet, and an
older TV. The dressers had several items on top. Gardner
testified that there were many personal items on the floor of
the bedroom. Peterson testified that Spence told the officers
that he lived there. Peterson testified that he did not
follow up on that statement because, in his experience, a
statement like that is true only “50” percent of
the time.

Peterson
and Gardner handcuffed Spence. Peterson secured Spence in a
police car, while Gardner stood by in the house. Peterson
testified that he patted Spence down for safety, but that he
did not look at Spence's ID (which had the 8337 Almont
address) at that time. Peterson testified that he then
returned to the house to search for the handgun. Gardner
testified that he knew he had to look for the handgun in
order to arrest Spence. The officers testified that
additional officers responded and came to the scene at some
point during the searches.

During
this second search, Peterson recovered a red dot sight for a
firearm and a sight magnifier from the top of the tall
dresser in the southeast bedroom. Gardner advised him of the
recovery of an AR-15 magazine from another dresser in the
southeast bedroom. Peterson and Gardner continued the search
for the handgun, and Peterson found it on the insulation in
the attic, on the edge of a hole in the ceiling of the
bathroom. He testified that the insulation was wet from an
apparent leak, but the handgun was dry and debris-free.

After
the officers recovered the handgun, they filmed a re-creation
of the recovery inside the house on the personal cell phone
of Officer Eric Maxwell, which they then shared amongst each
other. The Snapchat video shows various pieces of furniture
inside the house, personal belongings, and items hanging on
the wall of the southeast bedroom, including a Jamaican flag.
Def.'s Exh. 10. Peterson continued searching the house
after recovering the handgun, testifying that he is depicted
in a photograph which shows him searching the ceiling inside
a closet filled with personal belongings. Def.'s Exh. 4.
Peterson testified that this photograph is not of a
re-creation.

Cynthia
Moody, Spence's mother, testified that Spence has lived
at 8337 Almont for 17 years and has never used another
address on any identification. Moody's name has been on
the deed of the house since 1997. She testified that she
visits the house periodically to pick up mail, approximately
once per month. Moody visited the house during the summer of
2016 and saw that Spence had building materials and was
working on making improvements to the house. She testified
that Spence had a fire pit in the front lawn and a generator
chained to a tree in the front of the house. Garbage was
collected from the house this summer. Spence regularly mowed
the lawn. Spence regularly received mail at the house and
still does. See Def.'s Exh. 11. Moody testified
that she went into the interior of the house this summer and
saw that Spence had installed a new kitchen sink.
See Gov't's Exhs. 8B, 8C. She was aware that
the roof was damaged, and she testified that it has continued
to deteriorate and gotten worse. She was also aware that the
bathtub was not functional, but testified that the bathroom
sink was. Moody had boxes and bags of her personal belongings
in the living room, which she was planning to take with her.
These items included clothing, books, cassette tapes, VHS
tapes, school trophies, pictures, and figurines. See
Gov't's Exh. 8A. Moody testified that most houses in
the neighborhood look like theirs and have occupants who are
doing the best they can. Some houses in the neighborhood are
abandoned, and she testified that they have broken or no
windows and one can look right inside them.

David
Henderson, Spence's friend, testified that he has been
visiting Spence at 8337 Almont since they were kids. He
visited the house four to five times per week during the
summer of 2016. He mowed the lawn with Spence several times
during the summer of 2016. He also picked up garbage from the
lot with Spence several times per week. Henderson testified
that Spence put a tarp on the roof to cover the holes, but
had not fixed the roof. See Gov't's Exh. 3.
He also testified that the white van in the driveway belonged
to one of their friends. Henderson testified that they mostly
spent time inside Spence's bedroom, which had a bed, a
dresser, a mirror, a TV, Spence's clothing and shoes, a
radio, a DVD player, pictures of his family and a Jamaican
flag hanging on the wall, a chair, and a working mini
refrigerator. See Def.'s Exhs. 5-7. Spence and
Henderson would drink and watch TV in the bedroom. They used
the generator to power the appliances in the bedroom, and
they went down the street when they needed to use the
bathroom.

Walter
Jackson, Spence's friend, also lives on Almont Street. He
testified that many of the occupied houses in the
neighborhood are not in good condition, but residents are
often seen going in and out and have fixed or covered their
windows. There are also several abandoned houses in ...

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